Civil Procedure Commons^™

Executors And Administrators - Comparison Of Nonclaim Statutes And The General Statutes Of Limitations, Dan K. Cook

Michigan Law Review

An overwhelming majority of the states possess nonclaim statutes, which, in one form or another, purport to bar all claims against decedent's estates not presented to the decedent's personal representative within a stipulated period. It is the purpose of this comment to compare such statutes with the general statutes of limitations, giving particular regard to those situations where the operation of the two types of statute upon one cause of action may appear to conflict.

Equity - Contempt - Duration Of Imprisonment, Michigan Law Review

Michigan Law Review

Defendant, a trustee, refused to comply with a court order to turn over certain property to a receiver appointed by the court. She also refused to answer proper questions in a proceeding before a master. She was committed for contempt on January 5, 1934, to be held in jail till she complied with the court order and answered the questions. Her petition for release in July, 1937, was denied. Held, petition properly denied. Tegtmeyer v. Tegtmeyer, (Ill. App. 1937) 11 N. E. (2d) 657.

Jury - False Or Misleading Answers On Voir Dire As Grounds For A New Trial, James H. Kilbourne

Michigan Law Review

Defendant, a striking employee, was convicted of breach of the peace arising out of an assault on non-striking employees. Immediately preceding his trial the jurors had been interrogated on voir dire in a similar case. Counsel for defendant stated he would rely in part on that examination. In it the jurors had been asked whether they had either friends or relatives working at the strike-bound plant. Juror A failed to disclose that his brother was a non-striking employee, though he admitted his niece was. Juror B failed to disclose that a friend who had previously lived with him for a …

Abatement And Revival - Exception From Survival Statute Of Actions For Slander As Preventing Survival Of Action For Slander Of Title, Michigan Law Review

Michigan Law Review

Pending plaintiff's action for slander of title, defendant died. A statute provided that no action should abate by the death of either party thereto except actions for libel, slander, malicious prosecution, nuisance, or actions against a justice of the peace for misconduct in office. Held, the action abated, because, although slander of title was not expressly excepted from the operation of the statute, still the action of slander as specifically excepted by the statute embraces the action of slander of title. Billingsley v. Townsend, 132 Ohio St. 603, 9 N. E. (2d) 690 (1937).

Federal Courts - Procedure For Determining Jurisdiction Ab Facto - Burden Of Pleading And Proof, Richard B. Maxwell

Michigan Law Review

Since the beginning of our government it has been recognized that the federal courts are courts of limited jurisdiction. At an early date it was decided that because of this the plaintiff must state in his complaint the facts upon which the jurisdiction depended. The reason given in support of this rule, which is still the unquestioned law, is that there is no presumption of jurisdiction in courts which have only limited jurisdiction, but it is presumed not to exist unless its existence be shown upon the record. When the plaintiff sustained his burden of pleading the jurisdictional facts, his …

Witnesses - Privileged Professional Communications As Affected By The Presence Of Third Parties, Dan K. Cook

Michigan Law Review

Interesting problems arise in regard to privileged communications when made to the professional confidant in the presence of a third person. Such problems are concerned with the manner and degree in which the privilege is altered or destroyed by the presence of such third persons. It is the purpose of this comment to discuss the attorney-client and physician-patient privileges as affected by the presence of a third person, where the professional confidant and his client or patient are aware of such presence.

Judgments - Default Judgments Rendered Without Jurisdiction - Validating Effect Of A Subsequent General Appearance, Richard B. Maxwell

Michigan Law Review

The effect of a general appearance by the defendant following a default judgment rendered without jurisdiction over the person of the defendant has been again raised by the recent Wisconsin case of Schwantz v. Morris. In this case the original judgment was invalid for lack of jurisdiction over the defendants, but the Supreme Court of Wisconsin held, that by joining non-jurisdictional grounds with jurisdictional grounds in a motion to set the judgment aside, the defendants had waived any defects in or objections to the jurisdiction of the court and that this waiver related back to the time of the …

Judgments - Federal Declaratory Judgments Act, Charles R. Moon Jr.

Michigan Law Review

Underlying the declaratory judgment is the idea that in an organized and civilized society where law and order are thoroughly recognized and established, coercion is normally unnecessary to settle legal disputes between parties. The belief is that in many lawsuits the plaintiff is not seeking a means of coercing the defendant but that the plaintiff and the defendant merely want a final and conclusive decision of a disputed question on which their legal relations depend. The value of the declaratory judgment lies in that it may be used to settle this dispute, in many cases before any other form of …

The Theory And Practice Of Pre-Trial Procedure, Edson R. Sunderland

Michigan Law Review

Pre-trial civil procedure under the English common-law system consisted only of pleading. Whatever the rules of pleading could accomplish in the way of defining and restricting issues contributed to the efficiency of the trial. What could not be done by the rules of pleading could not be done at all.

The great weakness of pleading as a means for developing and presenting issues of fact for trial lay in its total lack of any means for testing the factual basis for the pleader's allegations and denials. They might rest upon the soundest evidence, or they might rest upon nothing at …

The Doctrine Of Stare Decisis In British Courts Of Last Resort, John A. Fairlie

Michigan Law Review

The House of Lords and the Judicial Committee of the Privy Council are both British courts of last resort. The House of Lords is the final court for the United Kingdom and reviews cases from the English Court of Appeals and equivalent courts of Scotland and Northern Ireland; the Judicial Committee hears appeals of cases from the colonies and dominions and ecclesiastical cases.

Readers of Professor Gray's lectures on The Nature and Sources of the Law are aware of the distinction he notes between the attitude of the British House of Lords, on the one hand, and the Judicial Committee …

Appeal And Error-Appealable Interest Of Bidder At Judicial Sale, Michigan Law Review

Michigan Law Review

The receiver of a bank effected a compromise settlement with the maker of a second mortgage note of $2100, agreeing to sell him the note for $500. Notice of hearing to confirm this sale was published. Prior to the confirmation, appellant, who was the holder of the first mortgage, offered to pay the receiver $600 for the note. The court confirmed the sale to the maker over appellant's objection made at the hearing. Held, that the appellant was not an aggrieved party and had no appealable interest. Dean v. Clapp, (Iowa 1936) 268 N. W. 56.

Witnesses - Instruction As To Credibility Of Police Officers And Paid Detectives, Theodore R. Vogt

Michigan Law Review

Defendant was convicted of violating the liquor laws. He complained of the trial court's refusal to instruct the jury that greater care should be used in weighing the evidence of police officers than that of other witnesses. Held, such an instruction was properly refused because the witnesses were regular members of the city police force. McCartney v. State, 129 Neb. 716, 262 N. W. 679 (1935).

Jury-Voir Dire-Actions For Negligence-Asking As To Interest In An Insurance Company, Michigan Law Review

Michigan Law Review

During the trial for injuries received in an automobile collision the plaintiff's attorney asked each prospective juror as to whether or not he owned stock in a named insurance company, or held a policy with it, or was an agent for it, and other questions as to whether or not the interest of an insurance company in the action would affect his decisions in the case. The company was not in fact a party to the action. The defendant assigned as error that such questions caused the jury to believe that the defendant carried insurance against loss from damages such …

Election Of Remedies - As Between Conversion And Replevin - Measure Of Recovery

Michigan Law Review

Through fraud, defendant received from plaintiff certain shares of stock together with other securities to secure a loan of $300,000 to the plaintiff. Defendant wrongfully hypothecated this stock. Plaintiff, after learning of the conversion, sued for the specific stock in replevin. During the course of the action he changed his demand to one in damages for conversion. The court held that plaintiff may not change the theory of his cause of action from replevin to conversion. Satterwhite v. Harriman Nat. Bank & Trust Co., (D. C. N. Y. 1935) 13 F. Supp. 493.

Federal Practice-Counterclaim By Lntervenors

Michigan Law Review

Plaintiff sued Freeman Company for infringing a patent by selling a certain patented device. The manufacturer of the device, and vendor of Freeman Company, obtained leave to intervene as a defendant under federal equity rule 37, and thereupon filed a counterclaim against the plaintiff for alleged infringement of other patents, claiming the right to do so as a "defendant" under federal equity rule 30. The plaintiff moved to dismiss the counterclaim. The motion was granted by the district court and affirmed on appeal by the circuit court. On certiorari the United States Supreme Court held that "defendant" under equity rule …

Bankruptcy - Reorganization Under Section 77 B - Determination Of Amount Of Claims For Purpose Of Voting On Approval Of Reorganization Plan

Michigan Law Review

In proceedings under Section 77 B of the Bankruptcy Act for the reorganization of the Philadelphia Rapid Transit Company, a special master was appointed by the court, to ascertain and classify the creditors. Interested parties petitioned the court to instruct the master to require the "underliers," the class of creditors composed of the former owners of the various car lines taken over by the debtor Transit Company, to produce their books and papers to establish the fair amount of their claims, asserting that their properties were acquired by the debtor at grossly inflated prices; that their real value did not …

Estoppel And Statutes Of Limitation, John P. Dawson

Michigan Law Review

Among all the spheres of its activity estoppel probably performs no more useful service than in the alleviation of hardship caused by statutes of limitation. Here as in other places the elements of estoppel and its relations to more basic legal concepts are exceedingly hard to define. At some points its effects on limitation acts could be described in terms of express contract; at other points it merges into "fraud"; in general it provides the medium for official expressions of disapproval where civil litigation exceeds the permissible limits of private warfare.

Practice And Procedure - Reservation Of Decision On Motion For Directed Verdict As Means Of Avoiding Unnecessary New Trials

Michigan Law Review

What may be done to remedy the situation if a jury brings in a verdict in favor of a party against whom a verdict should have been directed? This question becomes pertinent in view of the fact that judges, while hard pressed by counsel in the heat of trial, frequently wrongfully deny a motion for directed verdict and submit the case to the jury. One obvious remedy is the granting of a new trial by the trial judge, or by an appellate court after reversal. But this practice has proved eminently unsatisfactory, for it submits the aggrieved party to the …

Constitutional Law - Power Of State Legislature To Provide For Jury Trial In Proceedings For Contempt Of Court

Michigan Law Review

The defendants, an independent union, and members thereof, were cited for contempt before a court of common pleas for the violation of an in junction restraining them from interfering with the operation of the plaintiff's mines. The alleged contumacious acts took place some ten miles from the court house and consisted of gathering about automobiles containing employees of the plaintiff company, throwing stones at them, breaking windows of the cars, and injuring some of the occupants. The contempt proceedings arose on petition of the company and were before the same judge who granted the injunction. The defendants claimed that under …

The Enforcement Of Foreign Judgments In Anglo-American Law, Hessel E. Yntema

Michigan Law Review

Conflicts of laws are the necessary result of the division of judicial business. There are too many legal actions arising in localities too diffused to be tried in a single court or system of courts; consequently, litigation has to be distributed, and a highly complex body of jurisdictional regulations has been evolved to control the distribution. Once admit the multiplicity of courts, and diversities of law appear. Not only does the procedure in particular courts respond in some degree to the local traditions of the bar and to the specialized needs of the communities served, but indigenous precedents and practices …

Practice And Procedure-Seventh Amendment-Power Of Federal Court To Increase Inadequate Verdict

Michigan Law Review

A jury in a federal court awarded the plaintiff $500 in a personal injury action; he moved for a new trial on the ground of inadequate damages. Having obtained consent of defendant to entry of judgment for $1500, the trial judge denied the motion. Plaintiff appealed. Held, this procedure was a violation of the Seventh Amendment of the Constitution; a new trial must be granted. Dimick v. Schiedt, (U. S. 1935) 55 Sup. Ct. 296.

Practice And Procedure-Scope Of Court Rules Allowing Discovery

Michigan Law Review

The declaration alleged that plaintiff's intestate, a tenant of the defendant, sustained fatal injuries from a fall on the grounds of the apartment house, caused by defendant's negligence with respect to the care of the premises. The action was begun one day before the statute of limitations would have run. Defendant gave notice that under Court Rule 41 she would examine the plaintiff as to the particulars of the event which constituted the cause of action. Plaintiff filed a motion to set aside this order, alleging that defendant's rights under the above rule were limited to discovery as to affirmative …

Practice And Procedure - Direction Of Verdict - Scintilla Rule

Michigan Law Review

In an action to recover from the defendant gas company damage to the plaintiff's building caused by a gas explosion resulting from a defective pipe, the plaintiff's only evidence to prove the defendant's duty to repair it was that the pipe was used exclusively for the conveyance of the defendant's gas, and that the meters to which the pipe was connected were owned and controlled by the defendant. The trial court, by virtue of the scintilla rule, submitted the case to the jury which rendered a verdict for the plaintiff. Held, the scintilla rule no longer prevails in Ohio, …

Practice And Procedure - Seventh Amendment- Power Of Federal Court To Increase Inadequate Verdict

Michigan Law Review

A jury in a federal court awarded the plaintiff $500 for injuries received in an automobile accident. The plaintiff thereupon moved for a new trial on the · ground of inadequate damages. The trial judge, having obtained the consent of the defendant to entry of judgment for $1,500, denied the motion. Plaintiff appealed. Held, (Morton, C. J., dissenting) such procedure operates as a violation of the Seventh Amendment, and the only course open to a federal court in a case where damages are inadequate is to grant a new trial. Schiedt v. Dimick, (C. C. A. ·1st, 1934) …

The Grant Of Rule-Making Power To The Supreme Court Of The United States, Edson R. Sunderland

Michigan Law Review

The determined effort on the part of the American Bar Association, which continued without relaxation for almost a quarter of a century, to place the regulation of federal trial court procedure in law actions under the control of the Supreme Court of the United States, has at last been successful. Senate Bill No. 3040, granting full rulemaking power to the Supreme Court, became a law on June 19, 1934.

Actions-Declaratory Judgments-Jurisdiction To Grant

Michigan Law Review

A will was duly probated in the county court. By it the plaintiff and defendant were appointed guardians of the testator's minor children. The guardians did not get along together, and could not agree as to how the funds of their wards should be invested. Finally, proceedings were properly brought in the county court to have questions concerning the care of the funds settled. While such proceedings were pending, the plaintiff, evidently not content to have the difficulty settled in this manner, brought an equity suit in the district court against her co-guardian under the Declaratory Judgments Act, in which …

Process In Actions Against Non-Residents Doing Business Within A State, Maurice S. Culp

Michigan Law Review

Many state legislatures have undertaken to subject non-resident persons or unincorporated groups, or both, to the power of their local courts in relation to business transacted within their limits. No less than forty States have at one time or another enacted statutes providing for substituted service of process in actions arising out of such transactions. Most of these statutes apply to non-residents generally; but in eighteen States statutes, now or formerly in force, have provided in express terms for substituted service on non-resident partnerships or unincorporated associations. Both types alike provide that service may be made upon an actual agent …

Federal Practice - Decision Of Questions Preliminary To The Convening Of A Three-Judge Court

Michigan Law Review

Before the district judge can convene a three-judge court, two preliminary questions must be decided. First, is the case within the jurisdiction of the federal courts? Second, is the case one to which the three-judge statute applies?

Practice And Procedure - Joinder Of Parties And Causes Under The Uniform Fraudulent Conveyance Act

Michigan Law Review

The plaintiff sought, in one suit, to recover the amount of a promissory note from the maker and to attack a transfer of property by the maker to her brother, alleged to be a fraud on the maker's creditors. The maker and transferee were made defendants. The transferee demurred to the complaint on the ground that the two defendants had essentially different liabilities and so could not be joined in one action, under the South Dakota code. Held, that section 9 of the Uniform Fraudulent Conveyance Act permits the plaintiff to proceed in one action for a judgment on …

Practice And Procedure - Power Of The Court To Increase Inadequate Verdict

Michigan Law Review

With the development of the remittitur in the case of excessive verdicts, one would naturally expect the development of an analogous device for cases wherein the verdicts are inadequate. When the plaintiff moves for a new trial because of an inadequate verdict, a denial of the motion on the condition that the defendant agree to a certain increase in the verdict is perfectly analogous to the remittitur in form. But this device has not received the same wide acceptance as its counterpart. In cases in which the plaintiff has appealed this device has been condemned, while it has been approved …